Karnataka High Court
Sri Anil Kumar V vs Commissioner Of Police on 28 February, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
W.P.H.C. NO.4/2025
BETWEEN:
SRI. ANIL KUMAR .V
@ ANIL REDDY @ ANIL
S/O SRI. VASU
AGED ABOUT 49 YEARS
R/AT. FLAT NO.2103, B BLOCK
SALAPURIA MAGNIFICIA APARTMENT
Digitally signed by NEAR TIN FACTORY
ARSHIFA BAHAR BENGLALURU - 560016.
KHANAM
Location: HIGH
COURT OF ...PETITIONER
KARNATAKA
(BY SRI. ASHOK HARANAHALLI, SR. ADV., FOR
SRI. S. RAJASHEKAR &
SRI. ANOOP HARANAHALLI, ADVS.,)
AND:
1. COMMISSIONER OF POLICE
BENGALURU CITY
NO.1 INFANTRY ROAD
BENGALURU.
2. DEPUTY COMMISSIONER OF POLICE
CRIME, CRIME CENTRAL BRANCH
COTTONPET MAIN ROAD, SULTANPET
BAKSHI GARDENS
CHICKPET, BENGLALURU - 560053.
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3. ASSISTANT COMMISSIONER OF POLICE
CENTRAL CRIME BRANCH
WOMEN PROTECTION WING
COTTONPET MAIN ROAD
SULTANPET, BAKSHI GARDENS
CHICKPET, BENGALURU-560053.
4. STATE OF KARNATAKA
BY DEPARTMENT OF HOME
(LAW AND ORDER)
REPRESENTED BY ITS SECRETARY
VIKASA SOUDHA
BENGALURU - 560001.
5. JAIL SUPERINTENDENT
DISTRICT PRISON
BALLARI DISTRICT-583103.
...RESPONDENTS
(BY SRI. B.A. BELLIAPPA, SPP-I WITH
SRI. M.V. ANOOP KUMAR, HCGP)
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
DETENTION ORDER DATED 20.12.2024 BEARING NO.
07/CRM(4)/DTN/2024 PASSED BY RESPONDENT NO. 1 AT
ANENXURE-A. GRANT SUCH OTHER RELIEF/S THAT THIS
HON'BLE COURT DEEMS FIT IN LIGHT OF THE FACTS AND
CIRCUMSTANCES OF THE ABOVE CASE & ETC.
THIS W.P.H.C. HAVING BEEN HEARD AND RESERVED ON
19.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY VIJAYKUMAR A. PATIL J., MADE THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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CAV ORDER
(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
The petitioner is the detenue by name Sri.Anil Kumar
V. @ Anil Reddy @ Anil seeking prayer to quash order
dated 20.12.2024 passed by respondent No.1, orders
dated 30.12.2024 and 03.02.2025 passed by respondent
No.4 and seeking prayer to set him free by issuing writ in
the nature of habeas corpus.
2. The respondent No.1 passed the order of
detention dated 20.12.2024 by exercising power under
Section 3(2) of the Karnataka Prevention of Dangerous
Activities of Bootleggers, Drug offenders, Gamblers,
Goondas (Immoral Traffic Offenders, Slum - Grabbers and
Video or Audio pirates) Act, 1985 (hereinafter referred to
as 'Goonda Act' for short).
3. Sri.Ashok Haranahalli, learned senior counsel
appearing for the petitioner makes the following
submission:
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a. The impugned detention order is passed
taking into account four cases registered against
the detenue. Out of four cases,
Crime.No.517/2022 is registered by Machavaram
police station, Andhra Pradesh State for the
offences punishable under Section 7 read with
Section 14(c) of the Foreigners Act, 1946;
Crime.No.2/2023 is registered by the same police
station for the offences punishable under Section
3, 4, 5 & 7 of Immoral Traffic (Prevention) Act,
1956 (for short, 'ITP Act') and Section 370(A)(2),
370(3) of IPC and two cases have been registered
by the Mahadevpura police station in Crime
No.602/2023 which is for the offences punishable
under Sections 344, 376, 504, 506 read with
Section 34 of IPC and in Crime No.21/2024 is for
the offences punishable under Sections 3, 4, 5 of
ITP Act and Section 370, 370(A)(2), 370(3) read
with Section 34 of IPC and Section 66C of
Information Technology Act, 2000. It is submitted
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that in all the four cases the detenue was on bail.
The earlier two cases are outside the jurisdiction
of the detaining authority and he could not have
relied on those two cases to pass the detention
order, it shows no application of mind. Hence, the
detention order is bad.
b. Out of four cases, only two crimes registered
against the detenue are under the Immoral
Trafficking Act and the detention order is passed
against the detenue considering him as a immoral
traffic offender. In Crime.No.602/2023 the
jurisdiction police have filed a 'B' report and later
the jurisdictional Court rejected the said 'B' report
and continued the proceedings. The detaining
authority could not have placed reliance on
Crime.No.602/2023 and arrived at the satisfaction
as the police after conclusion of the investigation
stated that no case was made out against the
detenue.
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c. The last crime registered against the detenue
is Crime No.21/2024 by Mahadevpura police on
06.01.2024 and there is a time gap of more than
11 months between the last crime registered
against the detenue and the order of detention.
Hence, there is no live proximity, and the order of
detention is required to be set aside.
d. The detenue can speak kannada but he
cannot read kannada documents furnished to him.
The documents furnished along with the grounds
of detention were all in kannada language, they
ought to have been submitted with translated
copies. The non-furnishing of documents in known
language has lead to non-submission of effective
representation to the authority. On this ground
also the detention order is required to be
interfered with.
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e. The order of detention states that the
activities of the detenue have continued even after
the bail was granted by the Courts and he has
violated the bail conditions. However, no material
is produced to substantiate such a statement in
the grounds of detention. Admittedly, the police
have not filed any application for cancellation of
bail. Such a statement in the detention order is
based on assumption of the authority and there is
absolutely no application of mind.
f. The satisfaction arrived by the detaining
authority is based on irrelevant
consideration/material, as two FIRs registered
against the detenue are outside the jurisdiction of
the detaining authority and stale.
g. The order of detention does not speak as to
how public order is affected by the acts of the
detenue. There is a distinction between the public
order and law & order. Mere involvement of the
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detenue in some crime does not lead to public
disorder. Hence, the satisfaction arrived by the
detaining authority, approved by the State
Government and confirmation order are contrary
to the provisions of Goonda Act and the various
decisions of the Hon'ble Supreme Court. In
support of his contention he relied on the following
decisions:
1. 1992 Supp (1) SCC 496
Additional Secretary to the Government of
India & Others Vs. Alka Subhash Gadia &
Another
2. (2008) 16 SCC 14
Deepak Bajaj Vs. State of Maharashtra &
Another
3. W.P. (H.C.) No.87/2024
Hemachandra alias Prajwal Poojary Vs. State
of Karnataka & Others
4. (2023) 9 SCC 587
Ameena Begum Vs. State of Telangana &
Others.
5. 2019 SCC Online Kar 2965
Smt. Jayamma Vs. Commissioner of Police,
Bengaluru
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6. 1962 SCC Online SC 117
Harikisan Vs. State of Maharashtra & Others.
7. (2021) 9 SCC 415
Banka Sneha Sheela Vs. State of Telangana &
Others.
8. 1965 SCC Online SC 9
Ram Manohar Lohia Vs. State of Bihar &
Another
9. (2023) 13 SCC 537
Mallada K. Sri Ram Vs. State of Telangana &
Others
10. 2024 SCC Online SC 367
Nenavath Bujji Vs. State of Telangana &
Others
11. (2020) 13 SCC 632
Khaja Bilal Ahmed Vs. State of Telangana &
Others
12. (2012) 7 SCC 533
Subhash Popatlal Dave Vs. Union of India &
Another
13. 2022 SCC Online SC 1333
Sushanta Kumar Baik Vs. State of Tripura &
Others
4. Sri.Belliyappa, Learned SPP-I appearing for
respondents-State supports the impugned orders of
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detention and submits that the detaining authority as well
as the State Government has strictly followed the
procedure contemplated under Sections 3(1) & 3(2) of the
Goonda Act. The advisory board is also of the opinion that
the detention order is as per law. It is submitted that the
detenue has not submitted any representation to the
authority, hence, he cannot now contend that there was
no opportunity to submit effective representation. It is
further submitted that the detenue has been in the habit
of indulging in the acts which involved violation of public
order since 2022 as is evident from the four cases referred
in the detention order. The material available on record
indicates that the detenue is involved in very serious and
heinous crimes of human trafficking, exploitation of the
trafficked persons, running brothel and prostitution racket
in the name of running a massage center & spa. In the
process, the detenue has procured women of foreign
national & wrongfully confined them, such acts of the
detenue are prejudicial to the public order. The detaining
authority has passed detailed speaking order considering
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the cases registered against the detenue and on
satisfaction, has arrived at a conclusion that the activity of
the detenue cannot be curbed by ordinary law. Hence, the
authority has proceeded to pass the detention order in
order to prevent further activities of the detenue. It is also
submitted that in the case registered against the detenue
by Mahadevapura Police, charge sheet has been filed,
which prima-facie indicates the commission of crime by
the detenue and these cases are sufficient to arrive at a
conclusion that the acts of the detenue is detrimental to
the society and leads to public disorder, hence, the
detention order and consequential orders impugned in the
writ petition are required to be upheld. It is contended
that bare perusal of the order and the grounds of
detention clearly establishes that the detaining authority
and the State Government have thoroughly reviewed all
the relevant material placed before it, carefully gone
through the circumstances and on being fully satisfied that
it is imperative to pass the detention order against the
petitioner to prevent further illegal activity which would be
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detrimental to the public order. He submits that the acts of
the detenue as is evident from the material available on
record fits into the definition of "immoral traffic offender"
as defined under Section 2(h) r/w section 2(a)(v) of the
Goonda Act. The authority scrupulously followed the
mandate of Sections 3, 8, 10 & 13 of the Goonda Act and
passed the order. Hence, he seeks to dismiss the petition.
In support of his contentions, learned SPP-I has relied on
the following decisions of the Hon'ble Supreme Court :
i. Rajendrakumar Natvarlal Shah v. State of
Gujarat & Others reported in (1988) 3
SCC 153;
ii. T.A.Abdul Rahman v. State of Kerala &
Others reported in (1989) 4 SCC 741;
iii. Susamma Baby v. State Rep. by the
Principal Secretary to Government, Home,
Prohibition and Excise Department &
Others reported in 2023 SCC OnLine Mad
2163;
iv. Smt.K.Aruna Kumari v. Government of
Andhra Pradesh and Others reported in
(1988) 1 SCC 296;
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v. Aji v. State of Kerala reported in 2013
SCC OnLine Ker 24572;
vi. Shobhana P v. State of Kerala & Others
reported in 2024 SCC OnLine Ker 6975;
vii. Haradhan Saha v. The State of West
Bengal and others reported in (1975) 3
SCC 198;
viii. Kamarunnissa v. Union of India and
another reported in (1991) 1 SCC 128.
5. We have heard the learned Senior Counsel
appearing for the petitioner, learned SPP-I appearing for
the respondents-State and perused the material available
on record including the original records produced by the
respondents-State. We have given our anxious
considerations to the submissions advanced on both sides
and material available on record, the point that arises for
consideration in this petition is
"Whether the impugned order of
detention dated 20.12.2024 passed by
respondent No.1 and consequential
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impugned orders dated 30.12.2024 &
03.02.2025 passed by respondent No.4 are
sustainable under law?"
6. To appreciate the case on hand, it would be
useful to refer to the relevant provisions of the Goonda Act
and they are extracted as under for ready reference:
"3. Power to make orders detaining certain
persons.- (1) The State Government may, if
satisfied with respect to any bootlegger or drug-
offender or gambler or goonda or [Immoral Traffic
Offender or Slum-Grabber or Video or Audio pirate]
that with a view to prevent him from acting in any
manner prejudicial to the maintenance of public
order, it is necessary so to do, make an order
directing that such persons be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to
do, it may, by order in writing, direct that during
such period as may be specified in the order, such
District Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section (1),
exercise the powers conferred by the sub-section :
Provided that the period specified in the order
made by the State Government under this sub-
section shall not, in the first instance, exceed three
months, but the State Government may, if satisfied
as aforesaid that it is necessary so to do, amend
such order to extend such period from time to time
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by any period not exceeding three months at any
one time.
(3) When any order is made under this
section by an officer mentioned in sub-section (2),
he shall forthwith report the fact to the State
Government together with the grounds on which
the order has been made and such other particulars
as, in his opinion, have a bearing on the matter
and no such order shall remain in force for more
than twelve days after the making thereof, unless,
in the meantime, it has been approved by the State
Government.
8. Grounds of order of detention to be
disclosed to persons affected by the order.-
(1) When a person is detained in pursuance
of a detention order, the authority making the
order shall, as soon as may be, but not later than
five days from the date of detention, communicate
to him the grounds on which the order has been
made and shall afford him the earliest opportunity
of making a representation against the order to the
State Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers to
be against the public interest to disclose.
10. Reference to Advisory Board.-
In every case where a detention order has
been made under this Act the State Government
shall within three weeks from the date of detention
of a person under the order, place before the
Advisory Board constituted by it under section 9,
the grounds on which the order has been made and
the representation, if any, made against the order,
and in case where the order has been made by an
officer, also the report by such officer under sub-
section (3) of section 3.
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11. Procedure of Advisory Board.-
(1) The Advisory Board shall after considering
the materials placed before it and, after calling for
such further information as it may deem necessary
from the State Government or from any person
called for the purpose through the State
Government or from the person concerned, and if,
in any particular case, the Advisory Board considers
it essential so to do or if the person concerned
desire to be heard, after hearing him in person,
submit its report to the State Government, within
seven weeks from the date of detention of the
person concerned.
(2) The report of the Advisory Board shall
specify in a separate part thereof the opinion of the
Advisory Board as to whether or not there is
sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion
among the members forming the Advisory Board,
the opinion of the majority of such members shall
be deemed to be the opinion of the Board.
(4) The proceedings of the Advisory Board
and its report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential.
(5) Nothing in this section shall entitle any
person against whom a detention order has been
made to appear by any legal practitioner in any
matter connected with the reference to the
Advisory Board.
13. Maximum period of detention.-
The maximum period for which any person
may be detained, in pursuance of any detention
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order made under this Act which has been
confirmed under section 12 shall be twelve months
from the date of detention."
7. The bare perusal of the aforesaid Sections, it
indicates that the State Government may, if satisfied with
respect to any "immoral traffic offender" as defined under
Section 2(h) of the Goonda Act, that with a view to
prevent him from acting in any manner prejudicial to the
maintenance of public order, make an order directing such
a person to be detained. Sub-section (2) of Section 3 of
the Goonda Act empowers the District Magistrate or the
Commissioner of Police to exercise the powers conferred
under sub-Section (1) of Section 3 of the Goonda Act.
Sub-section (3) of Section 3 of the Goonda Act mandates
that if the order is passed by the Officer under sub-Section
(2) of Section 3 of the Goonda Act, he shall forthwith
report the fact to the State Government along with the
grounds on which the order has been made. The order
made by the Officer under sub-Section (2) shall remain in
force for 12 days unless in the meantime, the State
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Government approves it. Section 8 of the Goonda Act
mandates that the grounds of detention are required to be
served on the detenue within 5 days from the date of
detention and shall offer him the earliest opportunity of
making a representation against the order to the State
Government. Section 10 of the Goonda Act mandates that
the order of detention made under the Goonda Act shall be
placed before the Advisory Board within a period of 3
weeks from the date of detention order by the State
Government along with grounds on which the order has
been made and representation, if any, made against the
order. Section 11 of the Goonda Act provides the
procedure to be followed by the Advisory Board. The
Advisory Board is empowered to consider providing
personal hearing to the detenue and thereafter submit
report to the State Government within 7 weeks from the
date of detention of the person concerned. The Advisory
Board is required to forward its opinion as to whether or
not there is sufficient cause for the detention of the person
concerned. The opinion of the Advisory Board is
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confidential. Section 13 of the Goonda Act indicates that
the maximum period for detention is 12 months from the
date of detention.
8. The Hon'ble Supreme Court in catena of cases
laid down the law on the subject. The General guidelines
laid by the Hon'ble Supreme Court in the case of AMEENA
BEGUM Vs. STATE OF TELANGANA & OTHERS1 has
held in paragraph No.28 as under:
"28. In the circumstances of a given case, a
constitutional court when called upon to test the
legality of orders of preventive detention would be
entitled to examine whether:
28.1. The order is based on the requisite
satisfaction, albeit subjective, of the detaining
authority, for, the absence of such satisfaction as to
the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated,
would be the sine qua non for the exercise of the
power not being satisfied;
28.2. In reaching such requisite satisfaction, the
detaining authority has applied its mind to all
relevant circumstances and the same is not based
on material extraneous to the scope and purpose of
the statute;
28.3. Power has been exercised for achieving the
purpose for which it has been conferred, or
1
(2023) 9 SCC 587
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exercised for an improper purpose, not authorised
by the statute, and is therefore ultra vires;
28.4. The detaining authority has acted
independently or under the dictation of another
body;
28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not
authorised by the governing statute, has disabled
itself from applying its mind to the facts of each
individual case;
28.6. The satisfaction of the detaining authority
rests on materials which are of rationally probative
value, and the detaining authority has given due
regard to the matters as per the statutory
mandate;
28.7. The satisfaction has been arrived at bearing
in mind existence of a live and proximate link
between the past conduct of a person and the
imperative need to detain him or is based on
material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with
some degree of rationality and prudence, would
consider as connected with the fact and relevant to
the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise,
pertinent and relevant which, with sufficient clarity,
inform the detenu the satisfaction for the detention,
giving him the opportunity to make a suitable
representation; and
28.10. The timelines, as provided under the law,
have been strictly adhered to."
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9. Keeping in mind the law governing the subject
and the guidelines laid down by the Hon'ble Supreme
Court, we consider the contentions raised in the writ
petition. The original records made available by the
learned SPP-I indicates that respondent No.1 passed the
detention order along with grounds for detention on
20.12.2024 and they were served on the detenue. The
respondent No.1 forwarded the detention order to the
State Government on 23.12.2024 and the same was
approved by the State Government on 30.12.2024. The
approval order of the State Government was
communicated to the detenue on the same day. The entire
records along with the order of detention and the grounds
of detention have been placed before the advisory board
and the advisory board communicated the date of hearing
as 07.01.2025. The advisory board held its meeting as per
the schedule and further adjourned the meeting to
15.01.2025 as per the request of detenue. The advisory
board, on 15.01.2025, recorded that the detenue has not
submitted any representation; heard the detenue and
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forwarded its report and opinion to the State Government
on 01.02.2025. The advisory board is of the opinion that
the detention order is passed as per the provisions of the
Goonda Act. The above facts indicate that the respondents
have followed the procedure contemplated under the
provisions of the Goonda Act and no fault can be found
with it.
10. The contention of the learned counsel for the
petitioner/detenue is that there is no live and proximate
link between the cases registered against the detenue and
the order of detention. Respondent No.1 has considered
the four cases registered against the detenue, which are
as under:
(i) Crime No.517/2022 registered by
Machvaram Police Station Andhra Pradesh for the
offences punishable under Section 7 read with
14(c) Foreigners Act, 1946.
(ii) Crime No.2/2023 registered by Machvaram
Police Station Andhra Pradesh for the offences
punishable under Section 3, 4, 5 & 7 of The
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Immoral Traffic (Prevention) Act, 1956 and
Section 370(A)(2) 370(3) of IPC.
(iii) Crime No.602/2023 registered by
Mahadevapura Police Station Bengaluru for the
offences punishable under Section 344, 376,
504, 506 read with 34 of IPC and
(iv) Crime No.21/2024 registered by
Mahadevapura Police Station, Bengaluru for the
offences punishable under Section 3, 4, 5 of
Immoral Traffic (Prevention) Act and Section
370, 370(A)(2), 370(3) of IPC and Section 66(c)
of Information Technology Act, 2000.
11. Admittedly, two cases referred by the detaining
authority are outside the jurisdiction of the detaining
authority. Further, out of four cases, two cases are
registered under provisions other than the provisions of
ITP Act, hence, placing reliance on those other two cases
by the detaining authority amounts to consideration of
irrelevant material to come to the conclusion that the acts
of the detenue falls within the definition of Section 2(h) of
the Goonda Act. The last crime registered against the
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detenue is dated 06.01.2024 and the detention order is
passed on 20.12.2024 in which there is a time gap of
more than 11 months from the last crime. The last
incident has no live and proximate link with the
satisfaction arrived by the authority in passing the
detention order. The authority has not provided any
explanation for the delay in passing the detention order
from the last incident. Hence, the judgment relied on by
the learned SPP-I in the cases of Rajendrakumar
Natvarlal Shah, T.A.Abdul Rahman and Susamma
Baby, referred supra, have no application to the facts of
the case. The Hon'ble Supreme Court in the case of
Ameena Begum referred supra at paragraph No.28.7 has
clearly held that the satisfaction has been arrived at the
act bearing in mind existence of a live and proximate link
between the past conduct of a person and the imperative
need to detain him or is based on the material which is
stale. In the instant case, there is no live and proximate
link between the incident and the detention order, hence
the detention order is bad in law. A similar view was taken
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by the Hon'ble Supreme Court in the case of Mallada K
Sri Ram referred supra. The said principle has also been
followed by the co-ordinate bench of this Court in the case
of Abdul Rahiman vs. State of Karnataka2 referred
supra.
12. The second contention of the petitioner is that
the detenue could not submit effective representation in
view of the fact that he was not provided with the
document relied on by the detaining authority in the
language known to him. The detention order itself makes
it clear that the detenue can speak Kannada, English,
Telugu, Malayalam and Hindi languages and he is able to
read and write English, Malayalam and Telugu languages.
Admittedly, the document furnished along with the
grounds of detention by the respondent authorities are in
vernacular language i.e., Kannada. Though the statement
of objection says that translated documents were
furnished, there is no material placed to that effect. The
2
WP(HC) No.101/2024
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Hon'ble Supreme Court in the case of Harikisan referred
supra held that the communication of the grounds of
detention and documents relied shall be furnished in the
language known to the detenue in order to satisfy the
mandate of Article 22(4) & (5) of the Constitution of India.
In other words, the authority shall afford an opportunity to
the detenue to submit effective representation against the
order of detention. In the instant case, the absence of
furnishing the documents relied on by the detaining
authority in the language known to the detenue has
resulted in denying him the right guaranteed under Article
22(5) of the Constitution of India. Hence, on this ground
also the detention order is bad in law.
13. The third contention of the petitioner is that the
satisfaction arrived by the detaining authority is on
assumption of certain facts and on irrelevant
considerations. The grounds of detention clearly indicate
that the detaining authority has taken into account two
irrelevant cases which are not registered under the
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provisions of ITP Act and arrived at a conclusion that the
petitioner is required to be detained. Admittedly, Crime
No.517/2022 registered by Machavaram Police Station,
Andhra Pradesh, is under the provisions of Foreigners Act
and Crime No.602/2023 registered by of Mahadevapura
Police Station is under the provisions of IPC. Hence,
placing reliance on these two cases by the detaining
authority and arriving at a conclusion that the detenue is
"immoral traffic offender" as defined under Section 2(h) of
the Goonda Act is bad in law and amounts to consideration
of irrelevant material to arrive at subjective satisfaction to
exercise power under Section 3(2) of the Goonda Act.
14. Further, the detaining authority has recorded
the reasons that in spite of legal action initiated against
the detenue, he continued his illegal and immoral activity
which has led to public disorder and such a finding of the
detaining authority is absolutely without any basis. There
is no material whatsoever placed on record as to how the
detenue has continued his illegal activity of immoral
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trafficking after the last crime registered against him i.e.,
on 06.01.2024. Learned SPP-I in his additional statement
of objections has contended that on 05.11.2024, the
Additional Commissioner of Police, Bengaluru City,
received communication dated 04.10.2024 requesting the
authority to issue a 'No Objection Certificate' to reopen
'Nirvana International Spa', despite its closure due to
involvement in illicit activities. Such a letter demonstrates
that the detenue continued his immoral trafficking activity
and this letter establishes live and proximate link and also
establishes the intention to continue the illegal activity.
The said contention of learned SPP-I is taken note for the
purpose of rejection only. Paragraph No.9 of the additional
statement of objections cannot improve the order of
detention. It is a trite law that by way of affidavit, the
authority cannot substitute the reasons assigned in the
order of detention and the order has to stand or fall on its
own reasons. Hence, the subjective satisfaction arrived at
by respondent No.1 that the detenue continued his illegal
immoral trafficking activity is without any basis.
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15. The grounds of detention further indicate that
the detenue has threatened the witnesses (victims) that
they shall not depose before the Court against him and
there is no change in his behavior, he has continued to
indulge in immoral/criminal activities and spoiled the
public order. Such a finding of the detaining authority is
again without any basis. There is no material whatsoever
to arrive at a conclusion that the petitioner/detenue has
threatened any of the witnesses and there is no material
to show that the detenue has continued his
immoral/criminal activities, which has led to public
disorder, and it is only an assumption by the authority that
the detenue has threatened the witnesses without any
material basis. Hence, such satisfaction of the authority is
no satisfaction in the eye of law and even on this ground
the order of detention is required to be interfered with.
Further, the detaining authority has strangely reasoned
that the detenue's immoral activity has caused breach of
public order and cannot be prevented under ordinary law
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of the land and that the detenue has repeatedly violated
the bail conditions imposed by the Courts. For the
aforesaid reason no material particulars are furnished,
except referring four cases registered against the detenue
and no material is available on record to come to the
conclusion that the ordinary law of the land is insufficient
to curb the activities of the detenue. Hence, such finding is
without any basis. Further, there is no mention in the
grounds of detention as to which are the bail orders and
which are the conditions of such bail orders have been
violated by the detenue. In the absence of any material
particulars with regard to the alleged violation of bail
conditions, the grounds of detention can be termed as
vague and without any basis. The subjective satisfaction
arrived by the authority based on such vague assertion in
the grounds of detention is contrary to Section 3(2) of the
Goonda Act and the settled position of law. Hence, even
on this ground also the order of detention is required to be
set at naught. This view of ours gains support from the
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decisions of the Hon'ble Supreme Court in the case of
Ameena Begum and Nenavath Bujji referred supra.
16. The Hon'ble Supreme Court in the case of
Ameena Begum referred supra has held on the issue of
subjective satisfaction, public disorder and live proximity,
the relevant paragraphs of the said judgment are
extracted as under:
37. We may refer to the decision of the
Constitution Bench of this Court in Ram Manohar
Lohia v. State of Bihar [Ram Manohar
Lohia v. State of Bihar, 1965 SCC OnLine SC 9 :
(1966) 1 SCR 709] , where the difference between
"law and order" and "public order" was lucidly
expressed by Hon'ble M. Hidayatullah, J. (as the
Chief Justice then was) in the following words :
(SCR pp. 745-46, paras 54-55)
"54. ... Public order if disturbed, must lead to
public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards
quarrel and fight there is disorder but not public
disorder. They can be dealt with under the
powers to maintain law and order but cannot be
detained on the ground that they were
disturbing public order. Suppose that the two
fighters were of rival communities and one of
them tried to raise communal passions. The
problem is still one of law and order but it raises
the apprehension of public disorder. Other
examples can be imagined. The contravention of
law always affects order but before it can be
said to affect public order, it must affect the
community or the public at large. A mere
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disturbance of law and order leading to disorder
is thus not necessarily sufficient for action under
the Defence of India Act but disturbances which
subvert the public order are. ...
55. It will thus appear that just as "public
order" in the rulings of this Court (earlier cited)
was said to comprehend disorders of less
gravity than those affecting "security of State",
"law and order" also comprehends disorders of
less gravity than those affecting "public order".
One has to imagine three concentric circles. Law
and order represents the largest circle within
which is the next circle representing public order
and the smallest circle represents security of
State. It is then easy to see that an act may
affect law and order but not public order just as
an act may affect public order but not security
of the State."
46. In fine, what we find is that the order of
detention impugned in that writ petition failed to
differentiate between offences which create a "law
and order" situation and which prejudicially affect
or tend to prejudicially affect "public order". The
present detention order fares no better. Even if the
offences referred to in the detention order, alleged
to have been committed by the detenu have led to
the satisfaction being formed, still the same are
separate and stray acts affecting private individuals
and the repetition of similar such acts would not
tend to affect the even flow of public life. The
offence in respect of the minor girl did exercise our
consideration for some time but we have noted that
the detenu was not arrested because of an order
passed by the High Court on an application under
Section 438 of the Criminal Procedure Code ("CrPC"
hereafter). The investigating agency not having
elected to have such order quashed by a higher
forum, the facts have their own tale to tell. Even
otherwise, the gravity of the offences alleged
in Arun Ghosh [Arun Ghosh v. State of W.B.,
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(1970) 1 SCC 98 : 1970 SCC (Cri) 67] was higher
in degree, yet, the same were not considered as
affecting "public order". The only other offence that
could attract the enumerated category of "acting in
any manner prejudicial to the maintenance of public
order" and an order of preventive detention, if at
all, is the stray incident where the detenu has been
charged under Section 353IPC and where the police
has not even contemplated an arrest under Section
41CrPC.
47. On an overall consideration of the
circumstances, it does appear to us that the
existing legal framework for maintaining law and
order is sufficient to address like offences under
consideration, which the Commissioner anticipates
could be repeated by the detenu if not detained. We
are also constrained to observe that preventive
detention laws--an exceptional measure reserved
for tackling emergent situations--ought not to have
been invoked in this case as a tool for enforcement
of "law and order". This, for the reason that, the
Commissioner despite being aware of the earlier
judgment and order of the High Court dated 16-8-
2021 [Hakeem Khan v. State of Telangana, 2021
SCC OnLine TS 3663] passed the detention order
ostensibly to maintain "public order" without once
more appreciating the difference between
maintenance of "law and order" and maintenance of
"public order". The order of detention is, thus,
indefensible.
54. It would not be out of place to examine, at this
juncture, whether the Commissioner as the
detaining authority formed the requisite satisfaction
in the manner required by law i.e. by drawing
inference of a likelihood of the detenu indulging in
prejudicial activities on objective data. Here, we
would bear in mind the caution sounded by this
Court in Rajesh Gulati v. State (NCT of
Delhi) [Rajesh Gulati v. State (NCT of Delhi),
(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] that a
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detaining authority should be free from emotions,
beliefs or prejudices while ordering detention as
well as take note of the judgment and order dated
16-8-2021 [Hakeem Khan v. State of Telangana,
2021 SCC OnLine TS 3663] of the High Court on
the previous writ petition, instituted by the detenu's
father. On such writ petition, the High Court held as
follows : (Hakeem Khan case [Hakeem
Khan v. State of Telangana, 2021 SCC OnLine TS
3663] , SCC OnLine TS para 12)
"12. ... Under these circumstances, the
apprehension of the detaining authority that
since the detenus were granted bail in all the
crimes, there is imminent possibility of the
detenus committing similar offences which are
detrimental to public order unless they are
prevented from doing so by an appropriate order
of detention, is highly misplaced. ... In the
instant cases, since the detenus are released on
bail, in the event if it is found that the detenus
are involved in further crimes, the prosecution
can apprise the same to the Court concerned and
seek cancellation of bail. Moreover, the criminal
law was already set into motion against the
detenus. Since the detenus have allegedly
committed offences punishable under the Indian
Penal Code, the said crimes can be effectively
dealt with under the provisions of the Indian
Penal Code. The detaining authority cannot be
permitted to subvert, supplant or substitute the
punitive law of land, by ready resort to
preventive detention."
17. The Hon'ble Supreme Court in the case of
Nenavath Bujji referred supra, has held on the issues of
"cancellation of bail", "public order" and "subjective
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satisfaction", the relevant paragraphs of the said judgment
are extracted as under:
"41. The learned counsel appearing for the appellant
detenu is also right in his submission that if it is the
case of the Detaining Authority that there was no
other option but to pass an order of preventive
detention as the appellant detenu came to be
released by the regular criminal courts on bail then
the State should have gone for cancellation of bail.
Whenever, any accused is released on bail by any
criminal court in connection with any offence,
whether specifically said so in the order of bail while
imposing conditions or not, it is implied that the bail
is granted on the condition that the accused shall
not indulge in any such offence or illegal activities in
future. In some cases, courts do deem fit to impose
one of such conditions for the grant of bail.
However, even in those cases, where such a
condition is not specifically imposed while granting
bail it is implied that if such accused after his release
on bail once again commits any offence or indulges
in nefarious activities then his bail is liable to be
cancelled. In the case on hand, the State instead of
proceeding to pass an order of detention could have
approached the courts concerned for cancellation of
the bail on the ground that the appellant detenu had
continued to indulge in nefarious activities and many
more FIRs have been registered against him.
42. In the aforesaid context, we may refer to the
decision of this Court in the case of Shaik
Nazeen v. State of Telangana, (2023) 9 SCC 633,
wherein in paras 11 and 19 respectively, this Court
observed as under:
"11. The detention order was challenged by
the wife of the detenu in a habeas corpus
petition before the Division Bench of the
Telangana High Court. The ground taken by
the petitioner before the High Court was that
reliance has been taken by the Authority of
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four cases of chain snatching, as already
mentioned above. The admitted position is
that in all these four cases the detenu has
been released on bail by the Magistrate.
Moreover, in any case, the nature of crime as
alleged against the petitioner can at best be
said to be a law and order situation and not
the public order situation, which would have
justified invoking the powers under the
preventive detention law. This, however did
not find favour with the Division Bench of the
High Court, which dismissed the petition,
upholding the validity of the detention order.
xxxxxxxxx
19. In any case, the State is not without a
remedy, as in case the detenu is much a
menace to the society as is being alleged,
then the prosecution should seek for the
cancellation of his bail and/or move an appeal
to the Higher Court. But definitely seeking
shelter under the preventive detention law is
not the proper remedy under the facts and
circumstances of the case."
ii. Summary of the Findings.
43. We summarize our conclusions as under:--
(i) The Detaining Authority should take into
consideration only relevant and vital material to
arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and
administrative, that wherever a decision-making
function is entrusted to the subjective satisfaction of
the statutory functionary, there is an implicit duty to
apply his mind to the pertinent and proximate
matters and eschew those which are irrelevant &
remote,
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(iii) There can be no dispute about the settled
proposition that the detention order requires
subjective satisfaction of the detaining authority
which, ordinarily, cannot be questioned by the court
for insufficiency of material. Nonetheless, if the
detaining authority does not consider relevant
circumstances or considers wholly unnecessary,
immaterial and irrelevant circumstances, then such
subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court
does not sit in judgment over the correctness of the
subjective satisfaction. The anxiety of the Court
should be to ascertain as to whether the decision-
making process for reaching the subjective
satisfaction is based on objective facts or influenced
by any caprice, malice or irrelevant considerations or
non-application of mind,
(v) While making a detention order, the authority
should arrive at a proper satisfaction which should
be reflected clearly, and in categorical terms, in the
order of detention,
(vi) The satisfaction cannot be inferred by mere
statement in the order that "it was necessary to
prevent the detenu from acting in a manner
prejudicial to the maintenance of public order".
Rather the detaining authority will have to justify the
detention order from the material that existed before
him and the process of considering the said material
should be reflected in the order of detention while
expressing its satisfaction,
(vii) Inability on the part of the state's police
machinery to tackle the law and order situation
should not be an excuse to invoke the jurisdiction of
preventive detention,
(viii) Justification for such an order should exist in
the ground(s) furnished to the detenu to reinforce
the order of detention. It cannot be explained by
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reason(s)/grounds(s) not furnished to the detenu.
The decision of the authority must be the natural
culmination of the application of mind to the relevant
and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an
order of preventive detention, the detaining
authority must, first examine the material adduced
against the prospective detenu to satisfy itself
whether his conduct or antecedent(s) reflect that he
has been acting in a manner prejudicial to the
maintenance of public order and, second, if the
aforesaid satisfaction is arrived at, it must further
consider whether it is likely that the said person
would act in a manner prejudicial to the public order
in near future unless he is prevented from doing so
by passing an order of detention. For passing a
detention order based on subjective satisfaction, the
answer of the aforesaid aspects and points must be
against the prospective detenu. The absence of
application of mind to the pertinent and proximate
material and vital matters would show lack of
statutory satisfaction on the part of the detaining
authority."
18. The authority cannot place reliance on the stale
incidents and arrive at a conclusion to pass the detention
order, while in this case, irrelevant cases registered
against the detenue have been taken into consideration
while passing the detention order. Hence, on this ground
also the order of detention is required to be set aside. This
view of ours gain support from the decision of the Hon'ble
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Supreme Court in the case of Sama Aruna vs. State of
Telangana3.
19. We also cannot lose sight of the fact that
detaining authority has not applied its mind in passing the
detention order at page No.2 of the grounds of detention,
wherein the detaining authority has referred that on
06.11.2024 based on credible information CCB and local
Mahadevapura Police have conducted a joint raid on
'Nirvana International Spa', where 39 girls have been
rescued from the detenue's brothel house. It is not
forthcoming from the record, whether the raid is on
06.11.2024 or on 06.01.2024, as the charge sheet
material of Crime No.21/2024 indicates that the police
have raided the premises of the detenue on 06.01.2024,
however, it is not known why 06.11.2024 is the date
mentioned in the grounds of detention. Such lapse of the
detaining authority indicates that the detention order is
passed in a casual manner and consequential satisfaction
3
(2018) 12 SCC 150
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arrived by the authority in passing such order does not
withstand the scrutiny of law.
20. On examining the original records, pleadings,
the impugned order of detention, grounds of detention,
approval order of the State Government, the opinion of
the Advisory Board and the confirmation order of the State
Government, we are of the considered view that the
impugned order of detention, the approval order of the
State Government and the confirmation order of the State
Government impugned in the writ petition are not in
consonance with the provisions of law and the enunciation
of law laid down by the Hon'ble Supreme Court.
21. Having held that the detention order under
challenge is contrary to law and requires interference,
hence, we are of the considered view that the impugned
order of detention is passed in violation of the
fundamental rights of the detenue guaranteed under
Article 21 of the Constitution of India. For the
aforementioned reasons, we proceed to pass the following:
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ORDER
i. The writ petition is allowed.
ii. The impugned detention order dated 20.12.2024 passed by respondent No.1 at Annexure-A, order of approval dated 30.12.2024 passed by respondent No.4 at Annexure-F and the confirmation order dated 03.02.2025 passed by respondent No.4 at Annexure-G are hereby quashed.
iii. The respondents are directed to set the detenue at liberty forthwith.
iv. Registry is directed to communicate the operative portion of the order to the Superintendent of Prison, Ballari Central Prison, Ballari, forthwith for compliance.
v. No order as to costs.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK/BSR
List No.: 1 Sl No.: 1